ML22076A089
| ML22076A089 | |
| Person / Time | |
|---|---|
| Site: | Peach Bottom  |
| Issue date: | 03/17/2022 |
| From: | Curran D Beyond Nuclear, Harmon, Curran, Harmon, Curran, Spielberg & Eisenberg, LLP |
| To: | NRC/OCM |
| SECY RAS | |
| References | |
| 50-277-SLR, 50-278-SLR, ASLBP 19-960-01-SLR-BD01, CLI-22-04, RAS 56364 | |
| Download: ML22076A089 (17) | |
Text
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
)
In the Matter of )
Constellation Energy Generation, LLC )
f/k/a Exelon Generation Company, LLC ) Docket Nos. 50-277/278 SLR Peach Bottom Atomic Power Station, ) March 17, 2022 Units 2 & 3 )
___________________________________ )
BEYOND NUCLEARS RESPONSE TO CONSTELLATION ENERGY GENERATION, LLCS PETITION FOR PARTIAL RECONSIDERATION OF CLI-22-04 AND BEYOND NUCLEARS VIEWS IN RESPONSE TO CLI-22-04 I. INTRODUCTION Pursuant to 10 C.F.R. § 2.323(c) Beyond Nuclear, Inc. (Beyond Nuclear) hereby responds to Constellation Energy Generation, LLCs (Constellations) Petition for Partial Reconsideration of CLI-22-04 (Mar. 7, 2022) (Petition). In addition, as required by the U.S. Nuclear Regulatory Commission (NRC or Commission) in Exelon Generation Co., LLC (Peach Bottom Atomic Power Station, Units 2 and 3), CLI-22-04, __ N.R.C. __, slip op. at 4 (Feb. 24, 2024) (CLI-22-04), Beyond Nuclear submits its views on the practical effects of the Commissions remand order.
II. BACKGROUND This proceeding concerns an application by Exelon Generation Co., L.L.C.
(Exelon) (Constellations corporate predecessor) for subsequent license renewal (SLR) of its operating license for the Peach Bottom Units 2 and 3 nuclear power plant.
Originally licensed in 1973 (Unit 2) and 1974 (Unit 3) for 40 years, Peach Bottom was re-licensed in 2001 for an additional twenty years until 2033 (Unit 2) and 2034 (Unit 3).
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Under the requested second license extension, Exelon (now Constellation) would operate Peach Bottom for a total of 80 years, until 2053 (Unit 2) and 2054 (Unit 3).
In 2018, Beyond Nuclear requested a hearing on Exelons SLR application.1 In Contention 2, Beyond Nuclear challenged the applicability to Exelons application of 10 C.F.R. § 51.53(c)(3) and Table B-1 of 10 C.F.R. Part 51, Appendix A.2 Contention 2 also charged that Exelon had violated the National Environmental Policy Act (NEPA) by failing to review and evaluate the significant body of government studies raising concerns about how much is unknown about the effects of aging on reactor safety equipment.
These issues are discussed in detail in the Expanded Materials Degradation Assessment, NUREG/CR-7153, ORNL/TM-2013/532, Oct. 2014) (Materials Degradation Assessment) and SECY-14-0016, Memorandum from Mark A. Satorius, NRC Executive Director of Operations, to NRC Commissioners, re: Ongoing Staff Activities to Assess Regulatory Considerations for Power Reactor Subsequent License Renewal (Jan. 31, 2014) (NRC ADAMS Accession No. ML14050A306) (SECY-14-0016)).3 In support of Contention 2, Beyond Nuclear submitted an expert declaration and a detailed and extensive expert report by nuclear reactor safety expert David A.
Lochbaum.4 Mr. Lochbaum documented the existence of [a]bundant evidence 1
Beyond Nuclears Hearing Request and Petition to Intervene (Hearing Request) (Nov.
19, 2018).
2 Hearing Request at 11.
3 See Hearing Request at 7.
4 Declaration David A. Lochbaum (Nov. 16, 2018); Lochbaum, Proposed Subsequent License Renewal of Peach Bottom Units 2 and 3: Exelons Aging Management Programs Fail to Provide Adequate Measures for Consideration of Operating Experience Throughout the Period of Extended Operation at 3-4 (Nov. 16, 2018) (Lochbaum Expert Report)).
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regarding gaps, deficiencies, and uncertainties in present understanding of aging degradation mechanisms, which called for [l]earning from operating experience.5 This evidence included a 2017 technical report by Pacific Northwest National Laboratory (PNNL), which described technical gaps in the understanding of the effects of reactor equipment aged beyond 60 years, and presented a plan for obtaining the necessary information.6 As summarized in the Abstract section of the Report:
As U.S. nuclear power plants look to subsequent license renewal (SLR) to operate for a 20-year period beyond 60 years, the U.S. Nuclear Regulatory Commission and the industry will be addressing technical issues around the capability of long-lived passive components to meet their functionality objectives. A key challenge will be to better understand likely materials degradation mechanisms in these components and their impacts on component functionality and safety margins.
Research addressing many of the remaining technical gaps in these areas for SLR may greatly benefit from materials sampled from plants (decommissioned or operating). Because of the cost and inefficiency of piecemeal sampling, there is a need for a strategic and systematic approach to sampling materials from structures, systems, and components (SSC) in both operating and decommissioned plants. This document describes a potential approach for sampling (harvesting) materials that focuses on prioritizing materials for sampling using a number of criteria. These criteria are based on an evaluation of technical gaps identified in the literature, research needs to address these technical gaps, and lessons learned from previous harvesting campaigns. The document also describes a process for planning future harvesting campaigns; such a plan would 5
Id.
6 Lochbaum Expert Report at 18 (citing Ramuhalli, et al., Criteria and Planning Guidance for Ex-Plant Harvesting to Support Subsequent License Renewal at iii (PNNL-27120, December 2017) (Ramuhalli 2017)). NRC retained PNNL in 2015 to fulfill three objectives: (1) Develop a long-range strategy for obtaining information from decommissioning NPPS as well as providing the flexibility to get ex-plant components from operating plants; (2) Construct a strategic plan and specifications for obtaining unique and significant materials aging degradation information from diverse sources . . .
that will inform NRCs age-related regulatory oversight in the future; and (3) Update NRCs proactive management of material degradation (PMMD) information tool so that it can be better used to inform prioritization in the ex-plant material strategic plan.
Interagency Agreement NRC-HQ-60-15-T-0023, Statement of Work at 1 (Sept. 4, 2015)
(ADAMS Accession No. ML19129A323). In setting forth these objectives, the contract noted that [u]nderstanding and managing material and component degradation is a key need for the continued safe and reliable operation of NPPs, but has significant uncertainties. Id.
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include an understanding of the harvesting priorities, available materials, and the planned use of the materials to address the technical gaps.7 Consistent with Ramuhalli 2017, Mr. Lochbaums Expert Report advocated harvesting of components from shutdown reactors as a reasonable and potentially necessary means of obtaining external operating experience.8 But he also noted Ramuhalli 2017s conclusion that harvesting can be expensive, and therefore a top priority should be
[c]learly identifying the need for harvesting the material.9 At the time of its issuance, Ramuhalli 2017 was posted on the websites of PNNL, the U.S. Department of Energys Office of Scientific and Technical Information (OSTI), and the International Atomic Energy Agencys International Nuclear Information System (IAEA INIS).10 Subsequently, however the report was removed from all three websites. In an oral argument before the Atomic Safety and Licensing Board (ASLB) on March 27, 2019, NRC Staff counsel described Ramuhalli 2017 as a draft document that had been created by PNNL under contract with the NRC, but was predecisional because it had not yet been approved by the NRC. Tr. at 116-17 (Gamin)
(ADAMS Accession No. ML19088A340). According to NRC Staff counsel, the document was posted on these government and international nuclear information websites by mistake. Tr. at 117. Yet, the Ramuhalli 2017 Report contained not a single 7
Id. at iii (emphasis added).
8 Id at 34-41.
9 Id. at 40 (citing Ramuhalli 2017 Report at 24).
10 See https://www.pnnl.gov/main/publications/external/technical_reports/PNNL-27120.pdf PNNL), https://www.osti.gov/biblio/1413395-criteria-planning-guidance-ex-plant-harvesting-support-subsequent-license-renewal (OSTI),
(https://inis.iaea.org/search/search.aspx?orig_q=RN:49074900) (IAEA INIS).
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marking indicating it was a draft, and appeared for all intents and purposes to be the authors final product.
By letter dated April 2, 2019, the NRC Staff notified the Board and parties of the issuance of a revised version of Ramuhalli 2017: PNNL-27120, Rev. 1, Criteria and Planning Guidance to Ex-Plant Harvesting to Support Subsequent License Renewal (March 31, 2019) (ADAMS Accession No. ML19081A006) (Ramuhalli Rev. 1). None of the factual information reviewed by the researchers who prepared Ramuhalli 2017 appeared to be changed in Ramuhalli Rev. 1. But Rev. 1 systematically eliminated language used in Ramuhalli 2017 to describe knowledge deficits or the need to address them. For example, while the phrases technical gap and knowledge gap were used a total of 27 times in Ramuhalli 2017, the word gap appears only three times in Ramuhalli Rev. 1. And the Abstract quoted above at page 3, which had described research needs for addressing these technical gaps, disappeared completely.
A tabular comparison of statements in Ramuhalli 2017 with similar statements in Rev. 1 illustrates how thoroughly Ramuhalli 2017 was sanitized to eliminate conclusions that information significant to the safety of reactors was missing and needed to be obtained to ensure the safety of reactors operating beyond 60 years:
Ramuhalli 2017 Ramuhalli Rev. 1 This document describes a potential This document describes a potential approach for prioritizing sampling approach for prioritizing sampling (harvesting) materials using a (harvesting) materials using a number of number of criteria that incorporate criteria that incorporate knowledge about the knowledge about the specific technical specific technical issues that could benefit gaps closed through the sampling process. most significantly from harvesting. Beyond At the highest level, the major criteria the implications to safe operation of NPPs are [nuclear power plants], the basic criteria to assess specific harvesting opportunities should include . . . (p. ii) (emphasis added) 5
The decommissioning of some nuclear The decommissioning of some nuclear power plants (NPPs) in the United States power plants (NPPs) in the United States after extended operation provides an after extended operation may provide an opportunity to address a number of opportunity to increase knowledge about materials degradation questions that add to materials aging and degradation, through the confidence in the aging management harvesting of, and subsequent research on, system used by the nuclear industry. (p. v) service-aged materials. (p. ii) (emphasis (emphasis added) added)
Many of the remaining questions Insights into degradation mechanisms from regarding degradation of materials will studies on harvested materials can provide likely require a combination of laboratory confirmation of the effectiveness of aging studies as well as other research conducted management approaches used by the nuclear on materials sampled from plants industry. (p. ii) (emphasis added)
(decommissioned or operating). (p. v)
(emphasis added)
Addressing [materials degradation] In addition, evaluation of material properties questions is expected to provide of systems, structures, and components reasonable assurance that systems, (SSCs) from operating or decommissioned structures, and components (SSCs) are able NPPs may provide insights into the actual to meet their safety functions. (p. v) safety margins, and increase confidence that (emphasis added) long-lived passive components will be capable of meeting their functional requirements during extended operations.
Addressing many of the remaining [B]enchmarking of laboratory tests may be technical gaps for SLR may require a achieved by harvesting materials from combination of laboratory studies and reactors. The resulting insights into material other research conducted on materials aging mechanisms can add to confirmatory sampled from plants (decommissioned or evidence of the operating). Evaluation of materials effectiveness of aging management properties of SSCs from decommissioned approaches used by the nuclear industry, as NPPs will provide a basis for comparison well as insights into the operating margins with results of laboratory studies and while maintaining confidence that long-lived calculations to determine if long-lived passive components will be capable of passive components will be capable of continuing to meet their functional meeting their safety functions during requirements during extended operations.
operation beyond 60 years. Because (pp. 1-2) (emphasis added) of the cost and inefficiency of piecemeal sampling (i.e., harvesting materials on an ad-hoc basis), there is a need for a strategic and systematic approach to sampling materials from SSCs in both operating and 6
decommissioned plants. (p. 1) (emphasis added)
Over the past several years, a number While many plants are continuing to operate NPPs (both within the United States and and some have begun applying for continued elsewhere) have either permanently ceased operation through the SLR period, other operation or have indicated that they will plants in recent years have shut down or shut down in the next few years. These decided to cease operations in the near shutdown plants provide an opportunity to future. As these plants enter extract materials that have real-world aging decommissioning, there are expected to be and provide an avenue for benchmarking several opportunities for accessing and laboratory-scale studies on materials aging. harvesting service-aged materials for use in The resulting insights into material aging materials degradation research activities. In mechanisms and precise margins to failure addition, it is likely that opportunities to will be essential to provide reasonable sample materials from operating plants will assurance that the also arise as plants materials/components will continue to consider replacing specific components that perform their safety function throughout may have shown degradation. Given the the plant licensing period. (p. 2) significant opportunities for materials (emphasis added) harvesting from decommissioning and operating NPPs, it is beneficial to have a strategic and systematic approach to materials harvesting. (p. 1) (emphasis added)
Where available, benchmarking can be Where available, such benchmarking can be performed using surveillance specimens. In performed using surveillance specimens most cases, however, benchmarking of exposed to field conditions during the course laboratory tests will require harvesting of operation of the reactor. However, materials from reactors. (p. 2) (emphasis surveillance specimens are often limited to added) critical components such as the RPV, and do not exist for components in other locations in a plant. In such cases, benchmarking of laboratory tests may be achieved by harvesting materials from reactors. (p. 1-2)
(emphasis added)
Thus, while Ramuhalli Rev. 1 bears the cover of a scientific report by an independent federal research agency, NRC managements interference with its content has completely 7
deprived it of either independence or scientific integrity.11 And NRC management watered down -- to the point of complete negation - the authors qualitative conclusions regarding the imperative of gathering additional information about aging reactor equipment in order to minimize the risk to public health and safety and the environment.
On June 20, 2019, the ASLB denied Beyond Nuclears hearing request.12 The Commission affirmed the ASLBs decision on appeal, with dissenting opinions by Commissioners Baran and Wright.13 Later that year, Beyond Nuclear sought to file a new contention based on Draft Supplement 10 to the Generic Environmental Impact Statement (GEIS) for the Peach Bottom Operating License.14 In 2020, while that motion was pending, Peach Bottom received NRC Staff approval for a second license renewal term.15 On February 24, 2022, a majority of the Commission reversed CLI-20-11 in CLI-20-4, concluding the 10 C.F.R. § 51.53(c)(3) does not apply to Exelons SLR application.
The Commission explained the reasoning for its decision in Florida Power & Light Co.
(Turkey Point Nuclear Generating Units 3 and 4), CLI-22-02, __ NRC __ (Feb. 24, 2022)
(CLI-22-02). Rather than vacating the Staffs SLR decision, the Commission ordered 11 Under the circumstances, it is not surprising that the only agency to publish Ramuhalli Rev. 1 on its website is NRC. The document cannot be found on the websites for PNNL, OSTI, or IAEA INIS - where Ramuhalli 2017 previously was posted until it was withdrawn, apparently at the behest of NRC.
12 Exelon Generation Co., L.L.C. (Peach Bottom Atomic Power Station, Units 2 and 3),
LBP-19-5, 89 N.R.C. 483 (2019).
13 Exelon Generation Co., L.L.C. (Peach Bottom Atomic Power Station, Units 2 and 3),
CLI-20-11, 92 N.R.C. 335 (2020).
14 See CLI-22-04, slip op. at 1 n.1.
15 Subsequent Renewed License No. DPR-44 (Mar. 5, 2020) (ML20024G423).
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the Staff to amend the renewed license by reinstating the termination dates for the first license renewal term (2033 and 2034). The Commission requested the parties to submit their views on the practical effects of (1) the subsequent renewed licenses continuing in place and (2) the previous licenses being reinstated.16 On March 7, 2022, Constellation filed its Petition, seeking reinstatement of the termination dates that were established in their second renewed license: 2053 and 2054.
III. RESPONSE TO PETITION Constellation argues that by restoring the termination dates of Peach Bottoms initial renewed licenses, the Commission committed clear and material error.17 Citing the two-part standard set forth in Oglala Sioux Tribe v. NRC, 896 F.3d 520 (D.C. Cir.
2018) and Allied-Signal, Inc. v. NRC, 988 F.2d 146 (D.C. Cir. 1993) for the choice between vacating and remanding NRC NEPA decisions,18 Constellation argues that an analysis strongly weighs in favor of reinstating its subsequent renewed license and maintaining the new termination dates of 2053 and 2054.19 As a preliminary matter, the decision whether to vacate or remand lies within the Commissions discretion.20 Thus, the appropriate standard for reviewing the 16 CLI-22-04, slip op. at 4.
17 Petition at 1.
18 Under that standard:
The decision whether to vacate depends on the seriousness of the orders deficiencies (and thus the extent of doubt whether the agency chose correctly) and the disruptive consequence of an interim change that may itself be changed.
Oglala Sioux, 896 F.3d at 536; Allied-Signal, Inc. v. NRC, 988 F.2d at 150-51.
19 Petition at 4.
20 Standing Rock Sioux Tribe, 985 F.3d at 1051.
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Commissions decision is whether it constitutes an abuse of discretion, not clear and material error as Constellation contends at page 1. Constellation has failed to demonstrate that the Commission abused its discretion by vacating the portion of Constellations extended license that allowed Peach Bottom to operate an additional twenty years beyond 2033 and 2034.21 First, Constellation fails entirely to acknowledge that agency vacatur of a license for violations of NEPA constitutes "ordinary practice" in the federal courts.22 As the U.S. Court of Appeals for the D.C. Circuit has observed, district courts in this circuit routinely vacate agency actions taken in violation of NEPA.23 Of particular relevance here, failure to provide the required notice and to invite public comment constitutes a fundamental flaw that normally requires vacatur of the rule.24 Here, the NRC Staff failed to provide public notice that the 2013 License Renewal Generic Environmental Impact Statement (GEIS) applied to any NRC decisions other than initial license renewal. As the Commission noted in CLI-22-02:
Even if the Staff had intended to address subsequent license renewal in the GEIS, the occasional ambiguous phrasing did not put the public on notice of such an intention, particularly given the language in section 51.53(c)(3) confining its applicability to initial license renewal applicants. To provide a meaningful 21 As discussed in Section II, however, Beyond Nuclear respectfully submits that considerations of practicality and consistency with the National Environmental Policy Act weigh in favor of vacating Constellations subsequent renewed license in its entirety.
22 Standing Rock Sioux Tribe v. United States Army Corps. of Engrs, 985 F.2d 1032, 1050 (D.C. Cir. 2021) (quoting United Steel v. Mine Safety & Health Administration, 925 F.3d 1279, 1287 D.C. 212 (2019) (citing 5 U.S.C. § 706(2)).
23 Standing Rock Sioux Tribe, 985 F.3d at 1050-51 (citing Humane Society of the United States v. Johanns, 520 F. Supp. 2d 8, 37 (D.D.C. 2007) (observing that vacatur is the "standard remedy" for an "action promulgated in violation of NEPA"); Greater Yellowstone Coalition v. Bosworth, 209 F. Supp. 2d 156, 163 (D.D.C. 2002)).
24 Standing Rock Sioux Tribe, 985 F.3d at 1052 (quoting Heartland Regional Medical Center v. Sebelius, 566 F.3d 193, 199 (D.C. Cir. 2009) (emphasis added)).
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opportunity for public comment, the agency must adequately describe its intentions to the public.25 Thus, the Commission departed from standard judicial precedents in this Circuit by not vacating Constellations extended license in its entirety.
Not content with a half-loaf, Constellation seeks to obtain complete reinstatement of its subsequent renewed license by asserting that the Commission did not properly consider the two factors set forth in Oglala Sioux and Allied-Signal. First, with respect to the seriousness of the NEPA deficiency perceived by the Commission, Constellation argues that there is nothing in the current record showing that the NRC Staffs evaluation of the impacts from any Category 1 issue in the Supplement to the GEIS for Peach Bottom is incorrect or will need to be changed.26 But this argument strays too far towards the merits question of whether the technical content of the GEIS for Peach Bottom ultimately will be found to justify the approval of subsequent license renewal for the reactors. As the Court observed in Standing Rock Sioux Tribe, such a standard would vitiate the purely procedural protections of NEPA.27 25 Id., slip op. at 10.
26 Petition at 4.
27 Standing Rock Sioux Tribe, 985 F.3d at 1053-54 (emphasis added). As the Court explained:
Even were we to consider the Corps's odds of ultimately approving the easement, our case law still instructs that a failure to prepare a required EIS should lead us to doubt that the ultimate action will be approved. In Oglala Sioux Tribe v. U.S.
Nuclear Regulatory Commission, 896 F.3d 520 (D.C. Cir. 2018), we explained that because NEPA is a "purely procedural statute," where an agency's NEPA review suffers from "a significant deficiency," refusing to vacate the corresponding agency action would "vitiate" the statute. Id. at 536 (internal quotation marks omitted). As we made clear, "[p]art of the harm NEPA attempts to prevent in requiring an EIS is that, without one, there may be little if any information about prospective environmental harms and potential mitigating measures." Id. (internal quotation marks omitted). Put another way, Oglala 11
And in any event, Constellation ignores substantial record evidence, briefly summarized above in Section III, that operation of reactors beyond 60 years poses potentially significant environmental impacts, given the existence of substantial uncertainties and knowledge gaps regarding the behavior and interaction of aging reactor safety components.28 The record evidence also shows that the NRC Staff has attempted to suppress some of this evidence, namely the conclusions and recommendations of Ramuhalli 2017 that sampling of aging reactor equipment is necessary - not just desirable -- to obtain an adequate understanding of aging processes.
Under NEPA, the NRC is required to take a hard look at these uncertainties and knowledge gaps, evaluating the significance of the environmental risk if they are left unaddressed.29 A new GEIS must discuss, for example, the current state of knowledge regarding aging equipment, NRCs measures for addressing them, and the nature and significance of remaining uncertainties. It must also discuss measures for mitigating those risks. The discussion should be at least as detailed and thorough as Section 2.6 of the 1996 License Renewal GEIS for initial license renewal, which surveyed the body of strongly suggests that where an EIS was required but not prepared, courts should harbor substantial doubt that "'the agency chose correctly'" regarding the substantive action at issuein this case, granting the easement. Id. at 538 (quoting Allied-Signal, 988 F.2d at 150-51). The Corps resists the proposition that Oglala cautions against applying Allied-Signal in NEPA cases, but that is not the point. The point is that Oglala's application of those factors suggests that NEPA violations are serious notwithstanding an agency's argument that it might ultimately be able to justify the challenged action.
Id.
28 See, e.g., Materials Degradation Assessment, SECY-16-0014, and Ramuhalli 2017.
29 Robertson v. Methow Valley Citizens Association, 490 U.S. 332, 350 (1989).
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knowledge about aging reactor equipment that existed at that time.30 And the discussion will have to include Ramuhalli 2017, with full disclosure of how and why that report was sanitized by NRC management.
Thus, Constellation grossly errs in asserting that the record of this proceeding lacks any evidence that operation of Peach Bottom beyond 60 years poses significant adverse impacts that need to be addressed in a new EIS.
With apparent reference to the new license termination dates of 2033 and 2034, Constellation also avers to confusion and disruptive effects caused by the partial vacatur.31 But the reinstatement of the previous license termination dates is conceptually straightforward, and certainly no more confusing than the timely renewal doctrine itself.
And with respect to disruption of Constellations operation, Constellation does not even attempt to argue that the process for preparing a new GEIS for subsequent license renewal will take as many as many as ten years. In any event, nothing in CLI-22-04 would appear to prevent Constellation from seeking timely renewal of its shortened extended license renewal term several years from now.
Finally, with respect to the issues of accelerated depreciation expenses, increased asset retirement obligation, and delays in beneficial capital projects (Petition at 6),
Constellation has not provided any specific technical documentation or expert declaration supporting these effects, nor has it compared them to the effects of vacating the subsequent license in its entirety and requiring Peach Bottom to continue operating under 30 Id. at 2 2-52.
31 Petition at 5.
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its initial renewed (and timely renewed) operating license.32 Thus, Constellation has failed to provide sufficient factual support for its arguments.
IV. BEYOND NUCLEARS VIEWS ON CLI-22-04S PRACTICAL EFFECTS In CLI-22-04, the Commission asked the parties to submit their views on the practical effects of (1) the subsequent renewed licenses continuing in place and (2) the previous licenses being reinstated.33 Beyond Nuclear respectfully submits that from the practical standpoint of implementing NEPA, it would be preferable to vacate the subsequent renewed license and restore Constellations initial renewed license. Taking that step would bring NRC into line with the judicial precedents discussed above in Section III, and would also give the public, tribal governments, and state and local governments greater confidence in the seriousness of the agencys commitment to considering environmental impacts before taking potentially significant actions.34 As a practical matter, revising or preventing an environmentally-unwise action after a permit has been granted is all but foreclosed. The news article quoted by Constellation illustrates the potentially corrosive effect of the Commissions half-measure of partial vacatur, by accusing the Commission of giving a license extension and then a couple of 32 Nor is there any merit to Constellations additional claim that the Commission should change its decision in CLI-22-04 because Constellation could not have reasonably anticipated it. Petition at 5. Constellation has long been aware of Commissioners Barans and Hansons dissents from CLI-20-11. And had CLI-20-11 remained in force, Constellation would reasonably have been prepared for an appeal by Beyond Nuclear to federal court to overturn CLI-20-11 for its disregard of the plain language of 10 C.F.R.
§ 51.53.
33 Id. at 4.
34 Robertson, 490 U.S. at 350.
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years later snatching it back on what appears to be little more than a whim.35 There is absolutely nothing whimsical about the enforcement of NEPA and its action-forcing purpose.36 Nor is there anything frivolous about the Commissions correction, in CLI-22-02 and CLI-22-04, of previous decisions that had ignored fundamental principles of interpreting the plain language of regulations and had thereby significantly undermined the notice and comment requirements of both NEPA and the Administrative Procedures Act. But if Constellations subsequent renewed license remains in place, it gives credence to such baseless attacks, by signaling a belief that the NEPA process will not result in any meaningful insights or changes. This consideration weighs in favor of vacating the extended license in its entirety, and restoring the initial renewed license.
To restore the initial renewed license, it would not be necessary or appropriate for the Commission to reinstate all of the now-outdated safety programs that applied to the initial license renewal term. Having completed a safety review and offered an opportunity for a public hearing on Constellations revised Aging Management Plan (AMP), the Commission may declare that Constellations initial renewed license has effectively been amended, with the required procedures for fairness and due process, to incorporate the revised AMP. This step would be consistent with Amergen Energy Co., LLC (Oyster Creek Nuclear Generating Station), CLI-8-13, 67 N.R.C. 396, 400 (2008) (cited in CLI-22-04, slip op. at 3) and would also be an appropriate exercise of the Commissions ultimate responsibility to ensure the safe operation of the facilities that it licenses.37 35 Petition at 5 n.12.
36 Oglala Sioux Tribe, 896 F.3d at 532 (quoting Robertson, 490 U.S. at 350).
37 Yankee Atomic Electric Co. (Yankee Rowe Nuclear Power Station), CLI-91-11, 34 N.R.C. 3, 12 (1991).
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V. CONCLUSION For the foregoing reasons, the Commission should not reinstate the termination dates of Constellations subsequent renewed license for Peach Bottom. If the Commission takes any action, it should vacate the second license extension and order the Staff to impose Constellations current Aging Management Plan as a condition of continued operation.
Respectfully submitted,
___/signed electronically by/__
Diane Curran Harmon, Curran, Spielberg, & Eisenberg, L.L.P.
1725 DeSales Street N.W., Suite 500 Washington, D.C. 20036 240-393-9285 dcurran@harmoncurran.com March 17, 2022 16
UNITED STATES OF AMERICA NUCLEAR REGULATORY COMMISSION BEFORE THE COMMISSION
)*
In the Matter of )
Exelon Generation Company, LLC ) Docket Nos. 50-277/278 SLR Peach Bottom Atomic Power Station, )
Units 2 & 3 )
___________________________________ )
CERTIFICATE OF SERVICE I certify that on March 17, 2022, I posted copies of the foregoing BEYOND NUCLEARS RESPONSE TO CONSTELLATION ENERGY GENERATION, LLCS PETITION FOR PARTIAL RECONSIDERATION OF CLI-22-04 AND BEYOND NUCLEARS VIEWS IN RESPONSE TO CLI-22-04 on the NRCs Electronic Information Exchange System.
___/signed electronically by/__
Diane Curran 17